Citation Nr: 1756969 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 06-24 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to the service-connected right knee disability. 2. Entitlement to service connection for bladder cancer with incontinence. 3. Entitlement to service connection for recurrent otitis externa, to include as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: John B. Wells, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran had active duty service from October 1962 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2004, May 2004, July 2005, and August 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This case was before the Board in November 2013, when the above issues were remanded for additional development and clarification. The Veteran testified at a Board hearing in August 2010; a transcript is associated with the claims file. The Veterans Law Judge who conducted the August 2010 hearing is no longer before the Board. Given the opportunity, the Veteran requested an additional hearing and the claims were again remanded for a Board hearing in a May 2017 Board decision. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in June 2017. A transcript of the hearing is included in the claims file. A claim for entitlement to service connection for restrictive lung disease or pulmonary fibrosis (claimed as lungs burnt from chemicals), was remanded in November 2013 and May 2017 Board decisions. However, in an August 2016 decision, the AOJ granted entitlement to service connection for a lung disorder, diagnosed as adenocarcinoma of the lungs (claimed as lungs burnt from chemicals). The Veteran did not filed a notice of disagreement with the August 2016 RO decision. As of the time of the Board hearing, the undersigned noted there would be a review of the record to see if the downstream issue of an earlier effective date was in appellate status. Review of the record does not provide a basis for finding that an earlier effective date claim was in appellate status as a Notice of Disagreement followed by a Statement of the Case are not of record. In this regard, in August 2016, the RO issued a rating decision granting service connection for a lung disability and assigned 100 percent rating but also issued an SSOC as to service connection for a lung disability. At the time of the hearing, the undersigned and the attorney-representative discussed the issues in appellate status. There is no contention that a service connection claim related to the lungs remains in appellate status, and as noted, the Board does not find a basis for finding an earlier effective date claim is currently in appellate status. That is, a sympathetic review of the record does not indicate that the Veteran asserts that an additional lung disability has not yet been service connected, but rather that the service connection granted in the August 2016 rating decision should have an earlier effective date. Without a timely notice of disagreement as to the effective date established, the Board cannot find a basis for finding an earlier effective date claim to currently be in appellate status. The issues of entitlement to service connection for otitis externa, bladder cancer, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A low back disability is not etiologically related to the Veteran's active service, was not present to a compensable degree within one year of separation from active service, and was not caused or worsened by the Veteran's service-connected right knee disability. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by active service, the incurrence or aggravation of a lumbar spine disability during active service may not be presumed, and a lumbar spine disability is not proximately due to or aggravated by the service-connected right knee disability. 38 U.S.C. §§ 1101, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection A. Rules and Regulations The Veteran asserts he has a lumbar spine disorder due to an injury sustained in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. B. Analysis The Veteran has asserted that he has a low back disability which was incurred during active service, or, in the alternative, aggravated by his service-connected right knee disability. Service treatment records (STRs) include complaints of back pain. An April 1963 STR indicates the Veteran fell down a flight of stairs and grabbed onto the bannister. The Veteran was treated for a wooden splinter in the wrist. In a May 1964 STR, the Veteran complained of back pain. An April 1965 report of injury or accident indicates the Veteran was in an auto accident. He had no specific complaints. The diagnosis was laceration of the scalp. In a subsequent April 1965 STR, the Veteran was further examined. He had no specific complaints. There was full range of motion of the back with slight left sided tenderness. The diagnosis was blunt trauma to the back without residual effects. In a January 1966 discharge examination, the examiner noted the Veteran's spine as normal. Post-service VA and private treatment records include complaints and diagnosis of a low back disorder. In a February 1978 employer physical examination report, the examiner noted a diagnosis of spondylolisthesis. In a June 1984 letter, the physician noted the Veteran injured his neck in March 1984. He denied a history of neck injury in the past, although the physician stated he has worked quite hard in the oilfield all of his life. In an October 1985 letter, the physician stated the Veteran complained of low back problems which he related to a recent episode of bending over to pick something up and not being able to straighten up for a period of time. November 1986 and February 2000 VA CT scan reports showed spondylolysis and spondylolisthesis. In a December 1986 letter, the physician indicated that the Veteran brought some old physicals that had been done in the 1970s and 1980s which showed that he had spondylolysis and spondylolisthesis then. The examiner noted the Veteran's having some minor problems with this as there is no evidence of a herniated disc or major nerve root injury in his low back. A November 1987 VA progress note indicated the Veteran has chronic back and neck pain secondary to injury in 1984. An October 1989 letter indicated the Veteran reported he injured his neck in 1984 and that his low back pain stated a few years later. He denied any other accidents. The Veteran stated that he remembered not being able to pass a physical after he got out of the service and that he had to work jobs which did not require a physical. In a February 2000 VA psycho-social assessment, the Veteran reported he was in good health until he had neck surgery in the 1980s. In an October 2006 VA treatment record, the Veteran reported a 20 year history of low back pain. He asserted it happened while in service and he has been getting pain injections since that time. Clinical indication in a July 2010 MRI report stated "old military injuries." The impressions included chronic bilateral spondylolysis, moderate bilateral degenerative hypertrophic facet joint arthropathy with mild-moderate foraminal narrowing, and mild degenerative changes referable to the upper lumbar spine. Additional VA treatment records showed ongoing complaints of back pain with treatment including injections. In a February 2003 statement, the Veteran claimed that he has failed every physical that took x-rays of his back since three months after he got out of service. The Veteran reported he worked as a diesel pump mechanic after service. He stated he ran some boats and now worked part time as a guide on boat tours. In an undated statement, the Veteran asserted that this separation examination was inadequate as he was getting an early discharge due to a family emergency. He also asserted that within two to three months after discharge, while applying for employment at Kaiser Alum. Co., he failed the physical because of back problems. The Veteran reported that in 1963 he fell down a flight of stairs injuring himself. He injured his right knee and had a splinter removed from his left arm. He was also in two car accidents while in the Navy. The Veteran asserted that heavy lifting in service aggravated his back problem. In a November 2006 RO hearing, the Veteran testified that he injured his back in service. He stated he fell down a flight of steps and hurt his knee and back. He also stated he was in two automobile wrecks in service. The Veteran reported he worked at the active refueling station and he was thrown around on the ship which may have contributed to his back disorder. He has had problems with his back since separation and he was even rejected for employment within a few months of separation. The Veteran stated that he has continuous back pain. The Veteran asserted his discharge physical was erroneous as he was still on a ship in January 1966 and did not have a physical at that time. The Veteran asserted he was not given a separation examination. During an August 2010 Board hearing, the Veteran testified that his back problems began when he fell down a flight of steps in 1962 or 1963. The Veteran reported additional back injuries in service and continued back pain. The Veteran stated he first sought treatment for his back problems a few years after separation from civilian practioners. The Veteran asserted his back disorder has been worsened by recent falls due to his service-connected knee disability. The Veteran was afforded a VA examination in March 2011. The Veteran reported he fell in 1962 injuring his right knee and low back and, therefore, had more falls due to the knee giving way. The diagnosis was age typical degenerative disc disease (DDD)/degenerative joint disease (DJD). After a physical examination, the examiner stated the Veteran's spine condition is not cause by or a result of service-connected right knee disability. The examiner found there is no evidence of significant falls per knee x-rays and no flexion deformity of the knee to cause gradual overload on lumbar spine and the x-ray changes are diffuse and age typical. They are not severe and localized as would be seen in a service-connected injury from years ago. In an April 2015 VA addendum, the examiner stated that the Veteran's current lumbar spine disorder is unlikely related to his active service as he had minimal problems in service borne out of subsequent events. Additionally, he had minimal problems after service as he worked a back stressing job as a mechanic for 20 years. The examiner noted that x-rays look much better than typical for his age even though they should look worse considering his size, job, and diabetes. Additionally, the examiner found the Veteran's knee did not cause gait abnormalities or falls to affect his back as proven by post-discharge life and work history and x-rays. During a June 2017 Board hearing, the Veteran again testified that he injured his back in service when he fell down a flight of steps. He stated that after that time, he had problems walking up and down any flight of steps as they would cause pain. The Veteran also stated he fell due to the ship's rolling. He asserted that after service he continued to have back pain. He went to a job interview one month after he got out of the military and he was turned down due to his back. He reported that his records from that time are unavailable. He had at least a dozen failed employment physicals after that time. After a review of the evidence, including as discussed above, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for a low back disorder. Initially, the Board notes that there is no probative evidence that a lumbar spine disorder was compensably disabling within one-year of discharge from active duty and arthritis was not noted during service. Therefore, the preponderance of the evidence is against finding that the Veteran's low back disorder manifested during service or within one year of service separation. The Board finds that the most probative evidence of record as to the relationships between the Veteran's current low back disorder and service and between the Veteran's current low back disorder and service-connected right knee disability is the March 2011 VA examiner's opinion and April 2015 addendum as they are based on a review of the Veteran's medical records and is supported by a fully articulated rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the opinions stand unrebutted by competent medical evidence or opinion. While the Veteran, as a lay person, is competent to report observable symptomatology, he lacks the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the etiology of musculoskeletal disorders. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates his current condition to in-service injuries he is not considered medically qualified to address such a complex question. The Board finds that the April 2015 addendum opinion adequately addresses the issue of aggravation - with the examiner providing a negative response in the examination report by writing a rationale regarding gait abnormalities and/or the knee disability causing falls when addressing this aspect of the appeal. The Board finds that preponderance of the evidence weighs against a claim on secondary service connection. Although the Veteran stated in his application for benefits that his low back disorder began during his active duty, the separation examination failed to show any spine abnormalities and there are no reports of a low back disorder during the last year of the Veteran's active service. As such, the Board does not find the Veteran's statements sufficiently credible to substantiate that the condition has manifested chronic and continuous symptomatology since active duty. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other earlier lay statements that he had not received any wounds in service). Likewise, the first objective evidence of a back disorder is in a February 1978 employment physical, 12 years following separation. For these reasons the Board finds that presumptive service connection is not warranted for the Veteran's low back disorder. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (when considering whether lay evidence is credible, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a lumbar spine disability is not warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a low back disability, to include as secondary to the service-connected right knee disability, is denied. REMAND The Veteran asserts he developed bladder cancer as the result of exposure to herbicides in service. The claims file includes multiple VA opinions. However, none are adequate to determine service connection. A September 2015 VA examiner stated he could not give an opinion as he was unaware whether herbicides exposure can result in bladder cancer. In a December 2015 addendum, the examiner indicated that it is more likely than not that the Veteran's development of bladder cancer could be related to herbicide exposure. An April 2016 VA opinion stated the Veteran's exposure to herbicides less likely than not a causative factor in the Veteran' development of bladder cancer, but gave no rationale to support the opinion. As the September 2015 and December 2015 opinions were speculative, and the April 2016 VA opinion failed to give a rationale, the Board finds a VA opinion is necessary to address whether it is at least as likely as not that the Veteran's in-service herbicide exposure has a causal relationship with his subsequent development of bladder cancer. The Board is cognizant that at the time of the June 2017 hearing there was a discussion regarding seeking additional deck logs. After review of the current record, the Board cannot identify an unestablished fact that findings from additional deck logs would tend to support as to the issues currently in appellate status. For this reason, the Board does not direct that the AOJ seek additional deck logs at this time. In an October 2015 supplemental statement of the case (SSOC), the RO indicated that VA does not recognize hypertension as secondary to diabetes unless there is evidence of nephrologic complications. However, in a May 2015 VA examination, the examiner reported the Veteran has a diagnosis of diabetic nephropathy. Although the post-service treatment records show the Veteran's diagnosis of hypertension pre-dates his diagnosis of diabetes, the Board finds a VA examination and opinion is necessary. The Veteran asserts he has a chronic ear disorder caused by salt water splashing into his ear while in the Navy. The Veteran has not had an examination as to his ear claim. The Board finds a VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing directive #1, return the claims file to the clinician who authored the April 2016 VA opinion regarding bladder cancer. If the clinician is not available, the claims file must be provided to another clinician with the appropriate expertise to render the requested opinion. After reviewing the file, the clinician should address whether it is at least as likely as not (50 percent chance or greater) that the Veteran's bladder cancer was related to in-service exposure to herbicide agents (commonly referred to as Agent Orange). The examiner is informed that the Veteran served in the in-land waters of Republic of Vietnam and is presumed exposed to herbicide agents. The physician should be aware that the fact that bladder cancer is not listed as a disability subject to presumptive service connection is not dispositive evidence weighing against the claim. As such, it should not be used as the sole basis in support of a negative nexus opinion. The physician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If he/she cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 3. After completing directive #1, return the claim file to an appropriate VA examiner for a medical opinion as to the etiology of the Veteran's hypertension. A physical examination is only necessary if found required by the VA examiner. All findings should be reported in detail. Following a review of the relevant evidence, the physician should address the following: A. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is incurred in or causally related service, to include exposure to herbicide agents (Agent Orange). The Veteran in this case served in the in-land waters of Vietnam and is thus presumed to have been exposed to Agent Orange in service. The physician should be aware that the fact that hypertension is not listed a disability subject to presumptive service connection is not dispositive evidence weighing against the claim. As such, it should not be used as the sole basis in support of a negative nexus opinion. B. Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is aggravated or worsened by his service-connected diabetes. The physician is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The physician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If he/she cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 4. After completing directive #1, return the claim file to an appropriate VA examiner for a medical opinion as to the etiology of the Veteran's chronic otitis externa. A physical examination is only necessary if found required by the VA examiner. All findings should be reported in detail. Following a review of the relevant evidence, the physician should address whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's chronic otitis externa is incurred in or causally related service or is caused or aggravated by the service-connected diabetes mellitus. The physician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. If he/she cannot render an opinion without resorting to mere speculation, a full and complete explanation for why an opinion cannot be rendered should be provided. 5. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, issue to the Veteran and his attorney representative a supplemental statement of the case and give an opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs